State v. Anderson

195 S.E.2d 561 (1973)

283 N.C. 218

STATE of North Carolina v. John Henry ANDERSON.

No. 33.

Supreme Court of North Carolina.

April 11, 1973.

*565 Attorney General Robert Morgan, Associate Attorney General Ralf Haskell, for the State.

Donald W. Grimes, Asst. Public Defender, for defendant-appellant.

SHARP, Justice:

Defendant states the one question he seeks to raise on the appeal as follows: "Did the court err in its finding that the witness for the State Dora Campbell was a hostile witness and in permitting the Solicitor for the State to cross-examine the witness relative to the shooting of the deceased William Archie on the night of 17 June 1972?"

The foregoing question is based upon defendant's assignment of error and exception No. 4, which challenge the court's ruling which declared Dora Campbell "a hostile witness" and allowed the solicitor "to ask her leading questions relative to. . . the killing of the deceased, William Archie, on the night of June 17, 1972" at her home.

Defendant's contentions are that the solicitor's "leading questions" constituted cross-examination of Mrs. Campbell, a State's witness, for the purpose of discrediting her statement that she knew nothing about the actual killing of Archie; that the production of Exhibit 2 before the jury, and the solicitor's seriatim questions with reference to it, were highly prejudicial because the questions implied that Mrs. Campbell had previously answered them orally and in writing in a manner tending to support the charge of murder in the first degree.

Until changed by statute applicable to civil cases (G.S. § 1A-1, Rule 43(b) (1969)), it was established law in this State that a party could not impeach his own witness in either a civil or a criminal case. 1 Stansbury, North Carolina Evidence § 40 (Brandis rev. 1973). See also McCormick, Evidence § 38 (Cleary Ed., 2d ed. 1972); 3A Wigmore, Evidence §§ 896-905 (Chadbourn rev. 1970). This rule, unchanged as to criminal cases, still precludes the solicitor from discrediting a State's witness by evidence that his general character is bad or that the witness had made prior statements inconsistent with or contradictory of his testimony. However, the trial judge has the discretion to permit the solicitor to cross-examine either a hostile or an unwilling witness for the purpose of refreshing his recollection and enabling him to testify correctly. "In so doing, the *566 trial judge may permit the party to call the attention of the witness directly to statements made by the witness on other occasions. State v. Noland, [204 N.C. 329, 168 S.E. 412 (1933)]; State v. Taylor, [88 N. C. 694 (1883)]. But the trial judge offends the rule that a witness may not be impeached by the party calling him and so commits error if he allows a party to cross-examine his own witness solely for the purpose of proving him to be unworthy of belief." State v. Tilley, 239 N.C. 245, 251, 79 S.E.2d 473, 477-478 (1954).

In this case it is quite clear that the solicitor, by his "leading questions," was not only undertaking to prove Mrs. Campbell testified falsely when she said she did not make the statements contained in Exhibit 2 and all she knew about the homicide was that she heard a shotgun blast. He was also attempting to induce her to give the jury the same account of events she had given the police immediately after Archie was killed. Failing in this, he wanted to indicate to the jury what she had told the investigating officers at that time.

We note that this case does not present a situation in which the solicitor was surprised by a witness whose testimony in court was contrary to what he had a right to expect. In such an event the court may permit a party to cross-examine his own witness "as to what he had stated in regard to the matter on former occasions, either in court or otherwise, and thus refresh the memory of the witness and give him full opportunity to set the matter right, if he will, and at all events to set [the party] right before the jury. But you cannot do this for the mere purpose of discrediting the witness; nor can you be allowed to prove the contradictory statements of the witness on other occasions, but must be restricted to proving the facts by other evidence." State v. Taylor, supra 88 N.C. at 697-698.

When the solicitor called Mrs. Campbell to testify before the jury he was well aware that she had either suffered a loss of memory or had decided to disassociate herself entirely from the State's prosecution of defendant. That same day, only a very short time before, he had tried without success to "awaken her conscience" on voir dire. At that time, in the absence of the jury, he had asked her the same questions he asked her in the presence of the jury, and he received the same answers. His request for the voir dire prior to calling Mrs. Campbell as a witness before the jury makes it obvious that, before the trial, he had learned that she had repudiated Exhibit 2.

A question asked and unanswered is not evidence of any fact. Likewise, a question in which counsel assumes or insinuates a fact not in evidence, and which receives a negative answer, is not evidence of any kind. State v. Trimble, 327 Mo. 773, 39 S.W.2d 372 (1931). The jury, however, cannot be counted on to understand this.

The solicitor's questioning of Mrs. Campbell with reference to Exhibit 2 violated the "rule of law which forbids a prosecuting attorney to place before the jury by argument, insinuating questions, or other means, incompetent and prejudicial matters not legally admissible in evidence." State v. Phillips, 240 N.C. 516, 527, 82 S.E.2d 762, 770 (1954). See State v. Wyatt, 254 N.C. 220, 222, 118 S.E.2d 420, 421 (1961). The rule that the State could not impeach its own witness, Mrs. Campbell, by showing that she had made prior statements contradictory of her testimony at the trial made Exhibit 2 incompetent as evidence. It was therefore improper for the solicitor to ask her questions which clearly suggested the existence and text of such prior inconsistent statements.

Defendant was tried for first-degree murder and convicted of it. His defense was self-defense. No eyewitness to the homicide testified for the State. Obviously Mrs. Campbell's statement in Exhibit 2 *567 that, after she heard a shotgun blast, defendant came into her house, stepped over Archie's dead body and said, "If he isn't dead, I will kill him," was highly prejudicial to defendant. After Mrs. Campbell had testified and been cross-examined upon voir dire her repudiation of the statement she had made to the officers had been definitely established. The solicitor should have then "marked her off" of the list of State witnesses, and the trial judge erred in permitting him to cross-examine her again before the jury. This error requires that the verdict and judgment be vacated, and a new trial ordered.

New trial.